FEDERAL COURT OF AUSTRALIA

MZARS v Minister for Immigration and Border Protection [2017] FCA 177

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA), dismissing an application for judicial review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), to affirm the decision of a delegate of the respondent Minister not to grant the appellant a Protection (Class XA) visa (protection visa).

2    The appellant was self-represented in this Court, as she had been in the FCCA. She appeared at the hearing of the appeal with the assistance of a Punjabi interpreter. The Minister was represented by his lawyer in this Court as at first instance.

3    The applicant in the FCCA and the Tribunal (referred to in this Court and generally in these reasons as the appellant) claimed to be a person in respect of whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (the Convention) and to satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (the Migration Act) (as it was at the relevant time) or, alternatively, the complementary protection criterion in s 36(2)(aa). The appellant claimed that, if she returned to India in the reasonably foreseeable future, she would face a real chance of serious or significant harm at the hands of her former husband. She claimed that her former husband would harm her and her family in India, and possibly kill her, because she and her family had refused to provide him with money.

4    For the following reasons, I would dismiss the appeal, with costs.

summary of Background facts

5    The background facts are not in dispute. The following summary is drawn primarily from the Tribunal’s statement of reasons.

6    The appellant is an Indian citizen, who entered Australian in 2009 with a valid Indian passport and as a dependent of her then husband, who held a student visa. The appellant and her husband divorced in Australia in 2011; and the appellant was granted a second visa in her own right later the same year, to study an “English as a Second Language” course and a “Community Welfare” course. She received the necessary financial support from her family in India.

7    This second visa was issued subject to condition 8534, which is a “no further stay” condition. The appellant applied for a waiver of that condition in June 2012. This waiver request was unsuccessful, although the appellant had been granted a bridging visa when she made the waiver request.

8    The appellant re-married in July 2013. Her second husband was an Australian permanent resident.

9    In November 2013, the appellant made a second request for waiver of the “no further stay” condition, this time in order that she could apply for a partner visa sponsored by her new husband. This waiver request was also refused.

10    The appellant applied for the protection visa in March 2014. This application was refused by a delegate of the Minister in May 2014. Amongst other things, the delegate described the appellant’s claims as “vague and lacking in detail”. The delegate also stated that her failure to contact the department, as invited, to discuss her claims led the delegate to “to doubt the genuineness of her claimed fear”. Rejecting the corroborative value of certain text messages on which the appellant relied, the delegate also found that her delay in making her application for a protection visa raised “serious concerns about the immediacy, gravity and credibility of her claims of fearing persecution in India”.

11    On 2 June 2014 the appellant applied to the Tribunal for review of the delegate’s decision. The appellant gave oral evidence before the Tribunal on 27 January 2015. In January 2015 the Tribunal affirmed the decision under review.

the tribunal decision

12    Like the delegate, the Tribunal found that the appellant’s evidence in support of her claims was “vague and generalised”. The Tribunal also expressed “significant doubts about the credibility” of her claims to have suffered harm at the hands of her former husband in the past and her claims to face harm from him or anyone else in the future.

13    The Tribunal noted the following:

(1)    The appellant’s account of the physical harm she had suffered in the past from her former husband was inconsistent, when what she said in her statement accompanying her protection visa application was compared with what she told the Tribunal at the hearing. In her statement accompanying her protection visa application she said that her former husband began to harm her physically after they arrived in Australia, but she said to the Tribunal at the hearing that she had only been harmed by him once, when he slapped her twice on her face in India before they arrived in Australia, and that he did not harm her after their arrival in Australia.

(2)    The length of time between when the appellant claimed her relationship with her former husband ended (in 2011) and when she lodged her protection visa claim (in 2014) was inconsistent with the appellant’s claimed fears. The Tribunal rejected the appellant’s evidence that she had told her migration agent about her fears concerning her former husband when she made her first request for waiver of the “no further stay” condition and held that the reason she did not tell the agent was “because she did not fear harm at the hands of the ex-husband at that time”.

(3)    Her delay in applying for a protection visa and “the lengths of time when [the appellant] was without a visa but did not apply for protection … strongly suggest[ed] that she did not fear harm at the hands of the ex-husband during those times or at any other time”.

(4)    The former husband’s text messages and translations, which the appellant provided to the Tribunal, made no reference to harming or threatening to harm the appellant. The Tribunal rejected the appellant’s claim that her husband was “very careful” about how he worded his texts because he knew that she could show them to the police, noting that the appellant had conceded that she never contacted the police about the claimed harm or threats of harm. The Tribunal accepted only that the texts showed that the former husband had demanded money from the appellant and her family during 2010. The Tribunal gave the texts and other statements in her second waiver request “very little weight in assessing whether the ex-husband has harmed the [appellant] or her family in the past or seeks to harm them in the future”.

(5)    The appellant’s current husband did not attend the hearing before the Tribunal or provide any information in support of her protection claims. The Tribunal gave significant weight to the fact that the husband did not arrange to be available to give evidence at the hearing, at least be telephone if not in person, in assessing the credibility of her claims.

14    Having regard to these matters, the Tribunal concluded that the appellant was not a witness of truth in relation to her protection claims, and that she had deliberately exaggerated and provided false information about her fears of harm in India.

15    The Tribunal accepted that the appellant’s marriage to her former husband had ended in divorce in 2011 and that, during 2010, he had requested financial support from her, but the Tribunal did not accept that the appellant’s former husband had harmed or threatened to harm her or any member of her family at any time, either in India or in Australia. The Tribunal also found that the appellant did not fear serious or significant harm on returning to India on the basis of her present marriage.

16    The Tribunal concluded that the appellant’s claimed fear did not arise from a Convention related reason but from her former husband’s “desire for financial gain” and, in any event, it did not accept that there was a real chance that the appellant would suffer serious harm on return to India in the reasonably foreseeable future. The Tribunal added that it was not satisfied that “there is a real risk of the [appellant] suffering any form of significant harm at the hands of the ex-husband, the Indian security forces or anyone else”. It held that she had not satisfied the criterion in s 36(2)(a) or (aa) (or s 36(2)) of the Migration Act.

the decision of the FCCA

17    In the FCCA, the appellant challenged the Tribunal decision by reference to 22 paragraphs set out in her originating application. The primary judge observed that “[b]y and large, it is fair to say that the [appellant] refers [in these paragraphs] to matters that she referred to in her statutory declaration and in her evidence to the Tribunal”.

18    In her Honour’s reasons for judgment, the primary judge stated that she asked the appellant at the hearing to explain why the appellant believed the Tribunal decision was wrong: see MZARS v Minister for Immigration and Border Protection [2016] FCCA 2419 (MZARS) at [37]. The appellant apparently stated that her former husband had threatened her; that if she returned to India he would kill her; and that she had provided all of the evidence. She referred to the text messages sent to her in 2010 by her former husband and said that he continued to call at her family’s residence and to harass her by mobile phone.

19    The primary judge accepted the respondent Minister’s submission in the FCCA that the appellant asked the FCCA to engage in merits review, which the FCCA was not able to do. The primary judge accepted that, as the Minister submitted, the Tribunal’s decision depended on “very significant adverse credibility findings” and that they were regarded as findings “which are the province of the Tribunal ... and not for the Court to intrude on”: MZARS at [38]. Further, the primary judge accepted that, as the Minister submitted, the assessment of the weight to be given the evidence was a matter for the Tribunal: MZARS at [38]-[40].

20    The primary judge noted that there was one ground raised by the appellant that deserved separate consideration. This was whether the Tribunal had failed to consider a claim or an integer of a claim made by the appellant, namely that the appellant feared persecution based on her inter-caste marriage to her current husband. The primary judge concluded, however, that this claim was not one that arose or was apparent from the material before the Tribunal: MZARS at [43]-[44].

21    The primary judge concluded (at [45]-[47]):

... I am satisfied the Tribunal did not engage in jurisdictional error. The Tribunal dealt with all of the [appellant’s] claims. It simply found the [appellant’s] evidence and claims to be implausible, contrived and otherwise did not believe the [appellant]. These adverse credibility findings being something it could make.

The [appellant] refers to evidence that she gave to the Tribunal, but the Tribunal considered this evidence. It specifically considered the evidence about the SMS text messages and found that they did not amount to threats of harm.

The other aspect that the [appellant] raises is that her ex-husband continues to threaten her by mobile phone up until this date. The Tribunal dealt with this in its general findings, that it did not believe the [appellant’s] claims to fear harm. The Tribunal made it clear, on a number of occasions, based on its adverse credibility findings, that it simply did not accept that she was either harmed in the past or that she had a well-founded fear of suffering serious harm from her ex-husband or her ex-husband’s family or indeed anyone in India, should she return to India.

22    Accordingly, the primary judge was not satisfied the Tribunal’s decision was affected by jurisdictional error and dismissed the application.

The appeal

23    Under the heading “Grounds of appeal”, the appellant’s notice of appeal stated:

The applicant is a citizen of India. The delegate has refused the visa on the basis of I have not met the criterion of 866 Subclass which is under complementary protection Regulations onshore in Australia. I have not got anyone left in Australia except my brother and I have been legally married with Australian Partner, I have strong reason why I can't go to India, all evidence submitted tribunal by orally and also explained at FCCA on 29th August 2016.

I was invited to attend a hearing for protection visa and in the same letter was also invited to provide evidence of my claims, as I could not gather evidence I have been to Tribunal to give oral evidence. Prior to the schedule time of the hearing, I was requested, through my migration agent, to attend the hearing attend physically. Tribunal has asked me above documentation but if no one left in India to support to give the documentation as woman how this would be possible to gather documents.

It was in those circumstances that the Tribunal should have found me that I was eligible to give oral evidence instead of submitting the physical evidence.

Anyhow once I have received the decision from the Tribunal I have applied for Judicial Review as there was Jurisdictional Error in the Tribunal and Delegate Decision. I have attended the hearing date but Judge Jones has not given me full decision So I was in Dilemma whether I Can apply further or not.

I went to the Court physically asking the Registrar to send me the Decision if decision has been taken, Registrar has advised me to apply further without decision. Probably these communication might not have been understood properly to me to go further that is the reason I bringing the review application without Judge Jones decision.

I have not had any control of my own situations in Australia which became very bad in Australia to provide reasons at tribunal, but Administrative appeal Tribunal has made me ineligible to get the visa back and affirm to refuse the 866 visa. According to letter received by mail I have lodged the review application in time frame. New argument came to light which demonstrates the unsatisfactory evidence hasn't been done by me, the provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute?

Federal court has court hasn't even looked at applicant claims as there was big barrier "Judicial review has been made which have not been proved by me to make it Valid application", but I have exceptional circumstance beyond my control, reasons I have submitted and also documents can be submitted to the Federal Court of Australia.

24    Having regard to the circumstances disclosed in the appellant’s case, the intended significance of some of the statements set out above is not altogether clear.

25    The first respondent, though not the appellant, filed written submissions in the appeal.

Consideration

26    The jurisdiction of the FCCA at first instance, and of this Court on appeal, is controlled by statute: see ss 476 and 476A the Migration Act, read with s 474 of that Act, s 24 of the Federal Court of Australia Act 1976 (Cth), and s 10 of the Federal Circuit Court of Australia Act 1999 (Cth). In the context of the present appeal, the jurisdiction conferred on the FCCA was relevantly exercised when that Court undertook the consideration of whether or not the Tribunal’s decision was affected by jurisdictional error, as explained by the authorities: see, for instance, Plaintiff S157/202 v Commonwealth [2003] HCA 2; 211 CLR 476 at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). The question for this Court on appeal is whether or not the FCCA is shown to have erred in the conclusion it reached in this regard: for example, SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

27    The appellant does not, in her notice of appeal, identify any alleged jurisdictional error that the primary judge should have discerned. In substance, paragraph 1 under the heading “Grounds of appeal” sets out a brief history of the appellant’s claim (as she understood it) but does not identify the claimed “strong reason” that shows that she cannot return to India. Paragraph 2 records the Tribunal’s invitations to the appellant to provide evidence of her claim in support of her protection visa application and to attend a hearing. If it is suggested in this paragraph and paragraph 3 that there was error in asking the appellant about “documentation”, this suggestion is misconceived. Besides what the appellant had stated in writing, the appellant attended a hearing and gave oral evidence to the Tribunal. Bearing in mind that the delegate’s reasons for refusal included that the appellant’s claims were “vague and lacking in detail”, the appellant was on notice that her claim might well fail for lack of evidence. The Tribunal’s inquiry about further documentation might have prompted the appellant to provide some further material to substantiate her claims, but the appellant’s failure to provide such documentation was not critical to the outcome of the Tribunal’s decision. Rather this decision turned on the evidence and other material before the Tribunal, as well as the findings that the Tribunal made on the basis of this evidence and material.

28    Paragraphs 4 and 5 under the heading “Grounds of appeal” do not relate to any alleged jurisdictional error in the Tribunal, which the primary judge did not discern. Rather they apparently relate to the procedural steps anterior to filing the notice of appeal and are apparently intended to meet any objection to the competency of the appeal. These paragraphs refer, indirectly, to the fact that the primary judge delivered reasons for judgment ex tempore, which were later revised. The appellant does not allege that she was in any way disadvantaged by this procedure, and no-one suggested her appeal was incompetent.

29    Further, paragraph 6 under the same heading does not indicate any alleged jurisdictional error on the Tribunal’s part that the primary judge failed to see. The appellant was unable, at the hearing of the appeal, to explain the significance of the reference to “new argument”. At the hearing, the Court drew the appellant’s attention to this paragraph and asked the appellant to explain her claim that “[n]ew argument came to light which demonstrates the unsatisfactory evidence hasn’t been done by [her]”. In this context too, the Court also drew the appellant’s attention to the Tribunal’s findings, as discussed above. The appellant stated that: (1) she did not accept these findings; (2) she had applied for review because the Tribunal said that what she had written in her application was not true; and (3) her claims were genuine and that she did not know why they were not believed. Regrettably from the appellant’s perspective, none of the foregoing discloses jurisdictional error by the Tribunal or appellable error on the part of the primary judge.

30    The meaning of paragraph 7, which is the final paragraph under the heading “Grounds of appeal”, is unclear. In it the appellant appears to allege that the primary judge did not consider her claims. At the hearing of the appeal, the appellant did not, however, identify any issue that the primary judge should have but did not consider. The detailed reasons for judgment that the primary judge delivered clearly indicate that her Honour gave careful consideration to the appellant’s case.

31    If the appellant meant to say, as the Minister submitted, that the primary judge was in error because her Honour did not consider the claims that were said by the appellant to justify the grant to her of a protection visa, then, I accept that, as the Minister submitted, the appellant has misunderstood the nature of the jurisdiction exercisable by the FCCA. As already stated, the FCCA does not have jurisdiction to scrutinise the evidence and other material on which an appellant’s claims for a protection visa rely to determine whether or not she satisfied the relevant criteria for a protection visa. This kind of examination, known to Australian lawyers as ‘merits review’, was the task of the Tribunal and cannot be replicated by either the FCCA or by this Court on appeal.

32    As already indicated, the appellant filed no written submissions and, at the hearing, she did not identify any matter that might have amounted to jurisdictional error in the Tribunal or appellable error in the FCCA.

33    The Tribunal considered the appellant’s claims. Indeed, the appellant did not suggest at the hearing of the appeal that it failed in this respect. Rather, the appellant contested the Tribunal’s failure to accept her evidence and in turn her claims supporting her protection visa application.

34    It is apparent that the appellant’s application for a protection visa failed principally because the Tribunal considered the evidence and other material on which she relied in support of her claims was “vague and generalised” and because the Tribunal had significant doubts about her credibility. The Tribunal explained the basis for these doubts fairly and in some detail. While an adverse credit finding may found a conclusion of jurisdictional error (see, for example, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99; SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451; and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146), there is no basis that I can discern for attributing jurisdictional error to the credit findings made in the appellant’s case. It was open to the Tribunal to decline to accept some critical parts of her evidence as it did, and thus to affirm the delegate’s decision not to grant her a protection visa.

35    Having considered the reasons given by the Tribunal for affirming the delegate’s decision to refuse the appellant’s application for a protection visa, I can discern no jurisdictional error that the primary judge ought to have discerned. The appeal must fail.

Conclusion

36    The appellant submitted at the hearing that, if her appeal were unsuccessful, she should not pay costs as she is not allowed to work and does not have the means to pay any costs. Ordinarily, however, an unsuccessful party will be ordered to pay the costs of a successful party; and the inability of the unsuccessful party to meet costs is generally not a sufficient reason to deprive the successful party of a costs award: see, for example, Selliah v Minister for Immigration and Multicultural Affairs [1998] FCA 469 at [4] (Nicholson J); Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450 at [4] (Beaumont and French JJ); Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212 (French, Nicholson and Finkelstein JJ) at [5].

37    I am not satisfied that the circumstances of this case warrant departure from the usual rule that the costs should follow the event.

38    For the reasons stated above, the appeal should be dismissed, with costs.

Associate:

Dated:    1 March 2017